Estate law has roots that go back a thousand years into the British legal system, but the changes in technology are flipping these laws on their ear. The average American’s digital footprint is valued around $55,000, notes the Loyola University New Orleans College of Law. The majority of people do not have a plan for their digital assets and the laws are too antiquated to handle the process. This lack of forethought leaves the deceased at risk of posthumous identity theft, loss of transferable assets, and digital fraud.
What Is A Digital Estate?
In the Science Technology Law Journal, researcher Jamie Patrick Hopkins defines a digital estate as anything that only exists in a binary form of numeric encoding. These include uploaded photographs, electronic documents, emails, and software. These are all potential intellectual properties that are floating around the Internet after death. Intellectual properties can be big money. A report by the National Bureau of Asian Research shows intellectual property fraud in the United States can exceed $300 million. Digital estates hold many of these intellectual properties, but the decedent often does not plan to secure and bequeath the property. Instead, these properties become part of an inadequate legal system.
Laws Governing Digital Property
Out of 50 states, 31 have no laws on the books that specifically govern digital estates, reports Everplans. Other states, like Delaware, have enacted legislation that allows fiduciary access to digital accounts. The implications of these laws are huge. Imagine a hotly contested inheritance between spouse and children. One claims there is a picture on the dead person’s phone that will prove the case. The states that have these new laws on the books will give legal status for people to get account passwords and information that would be the deciding factors in cases like this.
The National Conference Of Commissioners On Uniform State Laws is trying to codify this patchwork system throughout the states. It is called the Fiduciary Access To Digital Access Actand the draft gives guidelines on how the states will release digital information to attorneys, trustees, and beneficiaries of an estate.
Protecting Your Digital Estate
All estate planning has one rule: start when you are still alive. Yes, there is a certain amount of obviousness to the rule but the newness of digital laws makes this even more important. You no longer have the luxury of allowing the established laws to handle your estate. Include all of your intellectual and digital property in your will, including passwords. Internet security company LifeLock recommends changing your password often. This is good information for protecting your electronic assets, but make sure to give permission to access your accounts after your death.
Digital assets need to be enumerated in your will or trust. Some of the specifics need to include file names and descriptions of intellectual properties, account permissions, and image usage criteria. Also remember that wills are public record so a trust may be a safer way to transfer digital rights.